LOCATION: South Carolina General Assembly
DOCKET NO.: 256
DECIDED BY: Warren Court (1965-1967)
CITATION: 384 US 257 (1966)
ARGUED: Apr 19, 1966
DECIDED: May 23, 1966
Facts of the case
Media for United States v. Cook
Audio Transcription for Oral Argument - April 19, 1966 in United States v. Cook
United States, Appellant, versus John W. Cook.
Oh, I beg your pardon -- I -- of course the opinion was announced -- versus John W. Cook.
Mr. Feit, if you are ready, proceed now.
Jerome M. Feit:
Mr. Chief Justice, may it please the Court.
At the outset, I would request the Court's permission for Mr. Thomas H. Peebles of the Tennessee Bar to argue this case for appellee's pro hac vice.
This case is here on direct appeal from an order of the District Court for the Middle District of Tennessee dismissing an indictment on the ground that it failed to charge an offense under the statute upon which it was based, 18 U.S.C. 660.
The indictment which is set out at page 1 of the record charged that while riding on his employer's truck moving in interstate commerce, appellee embezzled funds belonging to his employer who was an individual engaged in commerce as a common carrier.
18 U.S.C. 660 proscribed such embezzlement when committed by an employee of any firm, association, or corporation engaged in commerce as a common carrier.
The District Court read the statutory language firm, association, corporation as excluding from the statute's coverage individually owned carriers and accordingly dismissed the indictment.
In so doing, it followed the lead of the Tenth Circuit which in 1950, in a per curiam decision earlier reached the same result.
It is the Government's position that the District Court has given the statute an unnecessarily circumscribed reading contrary to the underlying legislative purpose and not commanded by the statutory language.
As we will show the statute in general and the employee provision in particular, protects all common carriers engaged in the business of interstate carrier, irrespective of their size, and no matter the internal business structure in which the carrier chooses to operate.
I would first like to turn to an examination of this legislative purpose and then to the question of whether the actual language employed in the statute can reasonably be read and fairly understood as convened to this purpose.
18 U.S.C. 660 is an amalgam of two distinct provisions of a Criminal Code brought together by the 1948 revision.
One, dealing with embezzlement by executives of carriers which had been previously Section 412 of the 1946 Code, and the other with certain kinds of employee embezzlement which had been Section 409 of the 1946 Code.
The employee part under which appellee was here indicted was first adopted in 1946, only two years before the 1948 revision as one of the series of broadening amendments of the Carlin Act of 1913 which had its aim, the protection of -- from theft of property entrusted to carriers for interstate transportation.
The 1946 amendment to Section 409, streamlined statutes by setting it up in separate provisions, broadened it to cover air as well as surface transportation and embezzlement as well as larceny and in addition, added Section 409 (a) (5) which is set out at page 9 of our brief.
In essence, this Section provided that an employee of any carrier who embezzles his employer's funds while riding either upon any vehicle belonging to his employer shall be guilty of a penalty -- of a felony.
The language in the statute, any carrier clearly covered all forms of carrier business regardless of size or their internal business structure.
Indeed, there is no question that appellee agrees that if 409 (a) (5) was the law today and the indictment was specifically drawn under that Section, the indictment was quite proper and authorized.
The argument is made, however, that the Congressional purpose was changed and that the scope of 409 (a) (5) was narrow by virtue of its combination with what had been this executive provision, Section 412 of the 1946 Code which had proscribed embezzlements by any president, director, officer, or manager of any firm, association or corporation engaged in commerce as a common carrier.
The result of the 1948 revision, the creation of Section 660, was that the language employee of any carrier was substituted and the language of the statute became an employee of any firm, association or corporation.
All the trustworthy evidence we submit points to the fact that this was -- this change of the revises did not narrow the statute but was basically a stylistic change not certainly a change of substance.
First of all, Section 412 as it had existed in the Criminal Code prior to the 1948 revision does not require such a reading.
It derives intact from Section 9 of the Clayton Act.
Undeniably, this provision adopted almost 35 years before the 1948 revision was principally concerned and meant to prevent financial depletion of railroad businesses through executive embezzlement.
It is, however, also a fair inference we think to draw from both the language of the Section 9 and from some of the Senate debate that the intent was more broad -- was broader, that in addition to protecting against embezzlement by executives of railroads, Congress aimed at serving the public interest in protecting all interstate carriers from impairment of effective operation through embezzlement by executives.
As one of the managers of the Senate Bill said of Section 9, we are dealing with all carriers alike.
This view is supported by the language, the comprehensive language used.